Irving (Migration)

The Administrative Appeals Tribunal (AAT) considered a matter concerning an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme) visa under the Temporary Residence Transition stream. The primary applicant sought review of a decision to refuse to approve their employer's nomination for this visa. The dispute centred on whether the nominated position met the requirements of clause 186.223 of the Migration Regulations 1994.

The Tribunal was required to determine if the nominated position was the subject of an approved nomination for a Temporary Residence Transition nomination, if the applicant was identified as the relevant subclass 457 visa holder, if the nomination had been approved and not withdrawn, if there was no adverse information concerning the nominator or associated persons, if the position remained available to the applicant, and if the visa application was made within six months of the nomination's approval. The Tribunal also had to consider the applications of the second and third named applicants, who applied as family unit members.

The Tribunal found that the applicant had been correctly identified in the nomination and that the position was the one declared for the visa application. Crucially, the Tribunal noted that a previous AAT decision (MRD 1511428) had set aside the Department's refusal to approve the nomination and substituted a decision to approve it. This meant the nomination was approved and had not been withdrawn. The Tribunal was also satisfied, based on evidence presented at a prior hearing and post-hearing, that the position remained available. Furthermore, the Tribunal was satisfied that no adverse information was known to Immigration regarding the nominator, Louis Dreyfus Commodities Australia Pty Ltd. Finally, the Tribunal confirmed that the visa applications were made within the six-month timeframe after the nomination was approved.

Consequently, the Tribunal concluded that the first applicant met the criteria under clause 186.223. The Tribunal remitted the visa applications for reconsideration by the Minister, with the direction that the first applicant had met this specific criterion. The outcome for the second and third applicants, as family unit members, was dependent on the outcome of the primary applicant's application upon remittal.